The New Privateers: Civil Forfeiture, Police Piracy, and the Third-Worldization of America

I know you're already mad about various injustices, but when you read Sarah Stillman’s recent New Yorker article, “Taken,” your blood will boil. It’s about the laws and practices – developed over the last 15-20 years as part of the "war on drugs" and the general encroachment of police-state tactics – regarding what is called “civil forfeiture.” And it’s about a lot more than that.

Forfeiture laws are touted as effective tools for destroying the empires of crime lords by seizing all the ill-gotten gains of their criminal activity. Criminal forfeiture laws – which are applied following conviction of a crime beyond a reasonable doubt, before a judge, with legal representation and such – can, used reasonably (the problems here are another issue), provide for just that. Civil forfeiture, on the other hand, is based on the legal theory that property does not have the rights of a person, and that therefore actions against property can be taken on the basis of mere suspicion or “probable cause,” with no need to prove a crime. So the case will have goofy names like, “United States v. One Pearl Necklace.” Another feature of the pre-crime police-state paradigm, civil forfeiture laws make suspicious (property) presumptively criminal (activity), without having to prove any actual, you know, crime. They authorize the police to steal your cash, car, jewelry, home, whatever, without even asserting that a crime has been committed.

[Do you hear the echoes in how suspicion of terrorism becomes terrorism itself? In how I don’t have to prove American citizens Awlaki, father and son, are “terrorists” (whatever that is) before drone-killing them, because my suspicion that they might be is good enough? (We won’t even get into how suspicion=guilt regarding other little stuff, like, oh, chemical weapons.) Do you see how years of putting up with pre-crime tactics for the “war on drugs” has been training in compliance for the more radical presumptive-guilt tactics of the “war on terror”? Constantly selling “war”-inflected frameworks of legal exceptionalism, the state has used various opportunistic bogeymen – “communists,” “drug dealers,” “pedophiles,” terrorists” (Who cares about them?) – to lure citizens into accepting a creeping radical authoritarianism. Preemptive forfeiture today, preemptive detentiontomorrow too.]

The insidious wrinkle in all this, which makes civil forfeiture not only creepily authoritarian but also painfully, infuriatingly, mean/brutal/savage/predatory, is that state and federal civil-forfeiture laws have allowed the police forces and prosecutors who seize “suspicious” property to keep all of it, and, in many cases, to use it any way they see fit, including personal perks and bonuses. As Stillman points out, we’re talking everything from “Halloween costumes, Doo Dah Parade decorations,…credit-card late fees, [and] poultry-festival supplies,” to “a thousand-dollar donation to a Baptist congregation…. important to [the District Attorney’s] reelection,“ to “a twenty-one-thousand-dollar drug-prevention beach party,” to “a city marshal’s ten-thousand-dollar personal bonus” and another officer’s “total of forty thousand dollars in bonuses.” Stillman reports: “In Hunt County, Texas, I found officers scoring personal bonuses of up to twenty-six thousand dollars a year, straight from the forfeiture fund. In Titus County, forfeiture pays the assistant district attorney’s entire salary.” In other words, the real practice of civil forfeiture has become a lucrative system of “policing for profit,” a system that has literally legalized highway robbery and turned police into pirates.

It’s important to understand where this money is coming from. The cops and media like to promote the idea that civil forfeiture is primarily a weapon against drug “kingpins,” that most of the property seized is along the lines of Pablo Escobar’s millions or the Ferraris that Crockett and Tubbs drove around Miami. That idea is, well, a crock. The New Privateers: Civil Forfeiture, Police Piracy, and the Third-Worldization of America. Sure, there has been some of that, and those glamor seizures are the ones most likely to be publicized by prosecutors and police. But, like all predators, the forfeiture cops target the easiest and the weakest prey. There are a number of factors that encourage this. First of all, as the list of perks imply, the juiciest catch is cash. Second, because there are legal procedures – very long and very complicated legal procedures, to be sure – by which confiscated but legal property and funds can be recuperated, the best targets are those who seem least likely to be able to afford the lawyers and the time needed to challenge a seizure. So it’s people who don’t have bank accounts or credit cards or Amazon Prime, who have to tuck the cash they have saved – the few hundred to buy those Christmas presents, or the couple of thousand to buy that used car – into their purses or the consoles of their car, who offer the most opportune targets.

Stillman quotes Lee McGrath, of the Institute for Justice: “There’s this myth that they’re cracking down on drug cartels and kingpins…In reality, it’s small amounts, where people aren’t entitled to a public defender, and can’t afford a lawyer, and the only rational response is to walk away from your property, because of the infeasibility of getting your money back.” McGrath did a study of $2.76 million in forfeitures taken by local, county, and state police forces in Georgia, showing that “more than half the items taken were worth less than six hundred and fifty dollars.” These stories don’t often make the news.

Home Depot

Let’s get down to cases for a moment. A lot of this robbery does take place along the highway, and we’ll get to that. But to get a sense of how thoroughly pernicious and predatory is the practice of civil forfeiture (and the “war on drugs” in which it is so tightly implicated), let’s look Stillman’s report of what happened to the Adams family in Philadelphia. Sixty-eight-year-old grandmother Mary Adams, and her seventy-year-old husband Leon, a pancreatic cancer patient, had built their lives and raised their only son in the same West Philadelphia home since 1966, working various unglamorous jobs like steel-worker, janitor, Woolworth’s saleswoman, and patient care assistant. Mary was a volunteer block captain who thought that seizing homes “was reserved for crack houses and abandoned eyesores.” You know, honest, hard-working makers not takers, and all that. Until one day, without any prior notice, a heavily-armed SWAT team invaded their home, and announced: “We’ll give you ten minutes to get your things and vacate the property.” This seventy-year-old man and sixty-eight-year-old woman were to be thrown out on the street, and their home of 46 years was to be sold at a city auction – with, as Stillman details, “the proceeds split between the district attorney’s office and the police department.”

All of this occurred because the Adams’s thirty-one year old son, Leon, Jr., had allegedly sold twenty dollars’ worth of marijuana to a confidential informant on the porch of their home. Because of this twenty-dollar crime, the Adams’s home could be seized and sold, even if Leon, Jr., was acquitted, and, in fact, even before he stood trial. (In this case, the Adams’s caught a break – a deferral, not a reprieve – when an eviction officer, on his own prerogative, struck by Leon’s frail condition, allowed them to stay in the house until the forfeiture proceedings were completed.)

It turns out that “homes in Philadelphia are routinely seized (about a hundred a year) for unproved minor drug crimes, often involving children or grandchildren who don’t own the home.” Predictably, as Louis Rulli, the head of a free University of Pennsylvania Law School clinic which works for indigent homeowners, told Stillman, “For real-estate forfeitures, it’s overwhelmingly African-Americans and Hispanics….It has a very disparate race and class impact.” To illustrate, Rulli recounted how the son of the former Philadelphia Eagles’ coach had been convicted of running what a judge and the press called an “emporium of drugs” while living at the family’s suburban mansion in 2007. Rulli asks, with appropriate agitation: “An emporium of drugs!…And here’s the question: Do you think they seized it?” It’s a rhetorical question.

So if you don't know about piracy, and don't know anyone it's happened to, it may be because its victims, I’m sure you’ll be shocked to learn, are largely poor people who can't afford to fight it, and, more surprise, disproportionately black and Hispanic. Relatively well-to-do white people don’t know any people this has happened to for the same reason they don’t know any kids who are stopped-and-frisked.

Pirates of the Median

Speaking of stopping and frisking, it’s on the highways that many police departments, often in rural areas, have developed the fine art of civil forfeiture – stopping, searching, and seizing vehicles and their contents in a finely coordinated and highly lucrative routine. Here, again, it’s people who don’t have bank accounts and have to carry cash to make their purchases who are the prime prey. It’s also the small business owners rushing to grab that great cash-only deal on used restaurant equipment they saw in the Pennysaver.

Take the case, recounted by Chole Cockburn of the ACLU, of Shukree Simmons, an African-American businessman, who was driving home with his partner and the $3,700 he had just got from selling his Silverado for desperately-needed funds for their business. They were stopped in Lamar County, Georgia, their vehicle was searched and dog-sniffed, they were questioned separately, and, after finding no evidence of any illegal activity, the cops confiscated his $3,700 “on the suspicion that the funds were derived from illegal activity,” as authorized under Georgia’s civil-forfeiture law.

Stillman’s New Yorker article (like this earlier article by Howard Witt in the Chicago Tribune and this by Janell Ross at the Huffington Post) focuses on the tiny (pop. 1160) town of Tenaha, Texas, where, as the ACLU’s successful lawsuit described, local police and prosecutors "developed an illegal 'stop and seize' practice of targeting, stopping, detaining, searching and often seizing property from apparently non-white citizens and those traveling with non-white citizens." From 2006 to 2008, the “Tenaha operation,” as it was known, on pretexts like “driving too close to the white line,” stopped, searched and seized the cash and valuables of as many as 1,000 black and Latino drivers.

One of the incidents that precipitated the ACLU lawsuit was the stop of Jennifer Boatright, a waitress and self-described “Texas redneck from Lubbock,” who was driving with her Latino boyfriend, Ron Henderson, and her two young sons, along with the $6,000 they were going to use to buy a used car. The district attorney, Lynda K. Russell, told them they faced felony charges of “money laundering” and “child endangerment,” and “threatened to turn their children, ages 10 and 1, over to Child Protective Services if the couple didn't agree to sign over their right to their cash.” The policy was: “If a driver opted for an arrest and a chance to see a judge, any children in the car would be turned over to child protective services. Jennifer’s Freedom of Choice. As Boatright put it to Stillman: “Where are we?…Is this some kind of foreign country, where they’re selling people’s kids off?” (It was State of Texas v. $6,037.” Boatright made the choice any parent would have, but ultimately did, as a result of the class-action suit, get her money back.)

Of course, we can believe Tenaha’s mayor George Bowers’s insistence that "We're not doing this to raise money.” Nooo, they’re just so concerned about evil drugs and children’s welfare that they’ll let the suspected child-endangering money launderers drive off with the kids for six grand. The fact that tiny Tenaha made $1.3 million in six months, with a “profit-sharing agreement…to split the proceeds among the district attorney’s office, the Tenaha marshal’s office, and the county constable,” was, cross his heart, not the reason they were doing this.

And Shelby County judge Rick Campbell is credible as well as sincere in insisting, “In my heart of hearts, I really do not believe that there was any kind of profiling going on.” After all it was, yes it was, a black former state trooper (“among the most decorated officers in state history”), Barry Washington, who came to Tenaha in 2006, and sold the mayor and city marshal on the idea that “his drug-interdiction skills could be put to good use along its section of Highway 59.” Because there are no black cops opportunistic enough to play the profiling game for their own benefit. (It was Washington who received $40,000 in bonuses.) Really, it wasn’t that he figured out a way to use the law to his own profit; it was a mission from God: “His explanation was simple. He’d been lying in bed one night in Carthage, soon after leaving his old job, when he looked up to see a light burst through his bedroom ceiling. ‘And it’s like I’m in a trance,’ he later recalled. ‘And God tells me, ‘Go to Tenaha, Texas.’ And I get up the next day, and I laugh about it, until I find out that God may be serious, so I end up in Tenaha.’” So it just can’t be racial profiling.

As a result of the ACLU lawsuit, Tenaha city and county officials paid $600,000 in legal fees, agreed to record all traffic stops, and accepted court-appointed monitoring of seizures, but they also denied any wrongdoing. Even Texas state Sen. John Whitmire had to acknowledge, however, that "[I]n this instance, where people are being pulled over and their property is taken with no charges filed and no convictions, I think that's theft." And Tenaha was only one example of a lager pattern of civil-forfeiture piracy throughout the county.

Seeing is believing, and all, so please take a look at this eight-minute excerpt (my rough edit) from a multi-part report on a local Tennessee TV station a couple of years ago, detailing how a big-business version of this practice, involving large-sum seizures, plays out. In it, we see how little interest the cops and prosecutors have in actually catching drug dealers rather than collecting cash, and how the war on drugs has become a thin excuse for highway robbery (not a rhetorical characterization):

Similar incidents occurred in the Tenaha case, where, for example, a local councilwoman noticed that a woman who appeared to be a major money launderer – she had $620,000 hidden in Christmas-wrapped “children’s toys” – was quickly released with no criminal charges after she signed away the cash.

[Watch the original 3-part series at: part 1, part 2, part 3. You’ll see the turf wars, where the cops/gangs from different agencies blocking each other off to protect their stretch of highway, and you’ll see another businessman who had $22,000 confiscated (“If somebody told me this happened to them, I wouldn’t believe it.”). The best part is watching the cops and the D.A. sputtering to explain and justify all this as concern for stopping the horrible scourge of drugs. It would be funny if it weren’t infuriating.]

Here’s another brief example (1:40. my rough edit, again), from last year in Union City, Georgia, of less the lucrative, but all the more devastating, seizure of a woman’s life savings, during a traffic stop in town. It’s remarkable how, although this happens all over the country, all the time, the local newscasters, and even the lawyer, are amazed and “appalled” that the police are able to seize people’s money without charging them with a crime:

The Social Sea

The “I can’t believe this can happen here!” response is a sign of how this practice is selectively targeted by race, class, and area, to keep it off the radar of the media and “middle class.” While the underlying legal theory that property does not have the rights of a person not is not unreasonable, the effects of seizing the little property that those off-the-radar millions depend on to survive is devastating. It amounts to a kind of preemptive immiseration, another way to take from the poor, and drive them further into social hardship. The police and prosecutors here are not taking drug kingpins’ Ferraris, they’re taking the cars people need to get to work, and their life savings. Adding insult to the injury, the assets seized can only go to the police, contributing nothing to society except further strengthening the primary institution of repression and social control.

It’s important to note that this practice is not some aberration of greedy policemen. It’s an inevitable and integral aspect of the encroaching neo-liberal – i.e., nakedly capitalist – social economy. The new piratic highwaymen are the effect, not the cause, of that social economy. These practices and these people are more products of the widespread defunding of the public sphere; the new mandate to replace consistent and adequate public funding of public services with discrete, sporadic, private and private-ish entrepreneurial projects. Public institutions are being reconfigured as isolated interests, and being told to grab what you can from wherever deep or shallow pockets you can figure out how to access. Sarah Stillman points out just how this civil forfeiture practice fits in with the thirty-year drive to defund public services: “The strategy helped reconcile President Reagan’s call for government action in fighting crime with his call to reduce public spending.”

Somehow, Reagan’s Attorney General, Richard Thornburgh, didn’t notice (Do we?) the daisy chain of corruption he was describing, when he when he exclaimed, with near-orgasmic glee: “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.” Gee, what would we do without that drug dealer?

This whole civil forfeiture scam, then, is a version of – particularly perverse, perhaps, but profoundly of a piece with – teachers and parents holding a bake sale to buy school supplies. In other words, as the officer acknowledges in the video above, this is now the way salaries and equipment purchases –the fundaments of public institutions – are funded. He’s seconded by Steve Westbrook, executive director of the Texas Sheriffs’ Association, who told Sarah Stillman: “We all know the way things are right now—budgets are tight…It’s definitely a valuable asset to law enforcement, for purchasing equipment and getting things you normally wouldn’t be able to get.” And Howard Witt cites “a prominent state legislator” to the effect that “police agencies across Texas are wielding the asset-forfeiture law more aggressively to supplement their shrinking operating budgets.” According to Stillman, “Many officers contend that their departments would collapse if the practice were too heavily regulated.”

There’s no question that the revenue from this practice has become significant. According to Stillman, the Justice Department calculates that proceeds from forfeiture went from twenty-seven million dollars in 1985 to $4.2 billion in 2012, an increase she aptly characterizes as “staggering.” There’s a heavy dose of self-interested exaggeration in these pleadings by the police. A lot of the loot goes into unnecessary equipment, and, as we’ve seen, extraordinary personal perks and bonuses. As Stillman notes, this is especially the case in states like Texas, Georgia, and Virginia, which do not much regulate how police can use confiscated assets, whereas “states that place seized funds in a neutral account, like Maine, Missouri (where proceeds go to a public education fund), North Dakota, and Vermont, have generally avoided major forfeiture-abuse scandals.” A public education fund! Bravo, Missouri. I do suspect that if seized assets were put in a monitored and regulated public fund, to be used for social purposes beyond the enrichment of local police forces, there would be less of the aggressively predatory behavior we see now.

Simon Porter, a former East Texas narcotics cop hit it exactly, when he told Stillman: “When you allow the profit incentive, that’s when you start getting problems…It’s like the difference between serving in the Army and working for Blackwater.”

It is just like that. It’s astounding how virtually every public service job has become, if you’re smart, nothing but a prelude, a purgatory really, that one passes through to get to the real heaven of private enrichment. Grunt soldiers spend a few years in the public army as training for the Blackwater job that will pay them ten times as much. High-level officers are preparing for the lucrative defense contractors’ Boards. Intelligence officers use the CIA and NSA for springboards to Stratfor and such. Congressmen prepare for the seven-figure lobbying jobs they know they await them if they vote the right way for a few years. Presidents get their seven-figure book deals, and know that six-figure speaking fees and eight-figure wealth await them if they listen to the right people. Public service for the sake of, you know, serving the public, actually living through a career remunerated by a public wage and pension – that’s for suckers, a relic of the days (even before Crockett and Tubbs) when airbases around the world were built and maintained by actual soldiers and sailors, the Seabees, not Halliburton.

This is the privatized neo-liberal world in which cops, too, are suckers if they don’t take the opportunity to become privateers.

I know a number of people who work in film and TV production. I hear the stories. There was the time a small crew was filming, with a permit, in the central square of a Mexican city, and the local police showed up, demanding a handout. Or, in Africa, where bribes were demanded to enter buildings and monuments that were ostensibly open to the public. In such places, people will give up what are, in the context, well-paying legitimate jobs to take a “public-sector” job that carries a significantly lower wage, but allows them to milk the public for ten times as much in bribes.

I think of these scenarios in contrast to the following story: One night, when my wife and I were exiting a garage in Manhattan, both carrying packages, a ring was dislodged from her finger, and we watched, in one of those slo-mo trances, as it rolled into the storm drain. Its value was certainly more sentimental than monetary, but she loved it. The next day, we tried to see if we could fetch it ourselves, but storm drains, it turns out, are very deep and murky. So, not hoping for much, we called the New York City Sanitation Department to see if anything could be done. We found, to our surprise, that they had guys in trucks whose job it was to help with our problem. The following day, the guy showed up, oh time, dug out the storm drain grating, and, with this huge vacuum hose, started pulling out the muck from the bottom of the storm drain, a few buckets’ worth at a time. He spent at least a half-hour, patiently going through sludge with us, in what – as we feared, and he surely expected – would be a vain endeavor. I was assuming that his patience and helpfulness was in expectation of a tip. I imagined the gratitude of someone for whom he had retrieved some enormously valuable jewelry, and thought that, surely, this guy was working a job that was coveted for that kind of potential reward. And he had worked hard for us, and we were very grateful. But, when we offered a tip, he adamantly refused. I mean repeatedly and adamantly (to our surprise, and to the astonishment of the garage attendant, who was looking on throughout). This is my job, he said, I cannot take a tip for doing it.

My point: If you want to guarantee that there will be endemic civic corruption, give public workers, from sanitation workers to cops to judges, crappy pay, lousy working conditions and no benefits, and they will inevitably use whatever modicum of power given to them by their badge or position in a bureaucracy to shakedown the public in any way they can get away with. (And that will be a lot of ways. When you’re got an indigent public-sphere at a third-world level, the corruption won’t stop at the police, and will include the judges.) That’s the culture of baksheesh.

Now you’re not going to eliminate corruption entirely, and I’m under no illusion that all NYC employees always act like the aforementioned sanitation worker. But, if you want to minimize the corruption of public employees – especially the ubiquitous, constant holdups that plague everyday life in many places – then provide them with good, secure jobs that come with real benefits and decent pensions they can count on. See that public employees have the kinds of jobs that will not require them to live on tips and bribes, the kind of jobs they will be loath to put at risk for the odd Benjamin.

The latter are the kinds of jobs that, over thirty-five post-WWII years in this country, were fought for, won, and protected by public-sector unions just like Local 831 of the Teamsters (the Uniformed Sanitationmen's Association). These jobs were based on a worker- and union-friendly politics and ideology on the local and national levels, which at least some important sectors of the political caste and, more importantly, the mass of workers themselves, were committed to keeping strong. This is the social framework in which you don’t always have to pay someone off to look for your lost property, or get a passport. Unfortunately, for the past thirty years, that social, ideological, and political paradigm has been relentlessly attacked and deeply degraded, not least of all by workers’ ostensible political representatives. Which is, guaranteed, going to mean an increase in public corruption, from the traffic stop to the courtroom. Welcome to the third world.

Of course, under any circumstances, the propensity for public, especially police and judicial, corruption will be exacerbated when you attempt wholesale prohibitions that are impossible really to enforce and engender widespread black markets awash with huge piles of cash, making for irresistible temptations. As in my third story, of the NYPD detective I knew, who once served as a leader of a large interagency drug task force. He told me how, after they had taken down a real “kingpin” operation, he watched the faces of the cops who had been working under his command when they saw the confidential informant, who had helped them in the case, walk out of his office with a bag stuffed with $70,000 or so in cash – the CI’s cut (yes, that happens), which was (at the time) more than most of those cops were making in a year. The detective was telling me this two years after, as he was preparing to testify to a corruption inquiry against those same cops, who had decided it was time to get theirs, and had taken to jacking drugs from dealers and forcing their CI to sell the drugs for them.

What we see in civil forfeiture practices is essentially the legalization and normalization of such corruption. We see the potent combination of the defunding of the public sphere with the maintenance of an inevitably criminogenic, corrupting prohibition. We see a trafficking in banned substances that is at once demonized, and at the same time carefully maintained, through its prohibition, as a substitute funding source for public institutions. Should we be surprised? The Tennessee highway patrol is using the cocaine trade to finance their salaries and SUVs in the same way the CIA used it to finance the contras and other off-the-shelf operations.1 When you have such profitable entrepreneurial schemes, who needs taxes?

Welcome to the third world, American-style.

Notes

1Honor to the late, great Gary Webb, about whom, if you don’t know, you really should – before the movie comes out, and we decide whether Jeremy Renner and Michael Cuesta are among the good guys. Robert Parry has been Webb’s most consistent advocate. Start with Parry’s post here, and go through the links.